Radar Online LLC v. Fed. Bureau of Investigation

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RADAR ONLINE LLC and JAMES ROBERTSON, Plaintiffs, v. FEDERAL BUREAU OF INVESTIGATION, Defendant.

No. 17 Civ. 3956 (PGG)

United States District Court, S.D. New York

June 25, 2024

ORDER

PAUL G. GARDEPHE, U.S.D.J.

Plaintiffs Radar Online LLC and James Robertson bring this action under the Freedom of Information Act (“FOIA”), seeking records related to the FBI's investigation and prosecution of financier Jeffrey Epstein for child sex trafficking crimes. (See Am. Cmplt. (Dkt. No. 12)) Plaintiff Radar Online is an online investigative news outlet and Plaintiff Robertson is one of its senior editors. (Id. ¶¶ 2-3)

Plaintiffs submitted their FOIA request to the Federal Bureau of Investigation (“FBI”) on April 20, 2017. (Id.¶ 10) Plaintiffs received no response, and filed this action on May 25, 2017. (Cmplt. (Dkt. No. 1)) The Amended Complaint was filed on August 28, 2017. (Am. Cmplt. (Dkt. No. 12)) After an initial case management conference on September 7, 2017, the FBI agreed to begin producing documents at a rate of 500 pages per month. The FBI has now processed 11,571 responsive pages, most of which were redacted in part or withheld in full based on certain exemptions to disclosure under FOIA. (Second Seidel Decl. (Dkt. No. 58) ¶ 3)

In July 2019, Jeffrey Epstein was arrested and charged with new Federal offenses, at which point the FBI asserted Exemption 7(A) to FOIA - the exemption for “records or information compiled for law enforcement purposes [,] [the disclosure of which] could reasonably be expected to interfere with enforcement proceedings” 5 U.S.C. § 552(b)(7)(A) -over pages that were previously processed and withheld and over all “remaining responsive records.” (Id. ¶ 7)

On December 10, 2020, this Court directed the parties to file cross-motions for summary judgment. (Dkt. No. 26) In a September 19, 2023 order (the “Summary Judgment Order”), this Court granted in part and denied in part each side's cross-motion. (Summary Judgment Order (Dkt No. 51)) In its Order, this Court directed the parties to file a joint letter addressing next steps, including a proposed schedule for the FBI's revised declarations and any renewed motions for summary judgment. (Id. at 54)^[1] On October 3, 2023, this Court set a briefing schedule for the parties' renewed cross-motions for summary judgment. (Dkt. No. 53)

For the reasons stated below, the FBI's motion for summary judgment will be granted, and Plaintiffs' motion for summary judgment will be denied.

BACKGROUND^[2]

I. FACTS

In support of its renewed summary judgment motion, the FBI submitted a revised declaration from Maureen Comey, an Assistant United States Attorney (“AUSA”) in the United States Attorney's Office for the Southern District of New York. (Third Comey Decl. (Dkt. No. 59) ¶ 1), and a revised declaration from Michael G. Seidel, the Section Chief of the Record/Information Dissemination Section (“RIDS”) of the FBI's Information Management Division (“IMD”). (Second Seidel Decl. (Dkt. No. 58) ¶ 1)

A. Plaintiffs' FOIA Request and the Instant Action

Epstein was a financier who in June 2008 pleaded guilty to “a criminal charge of procuring prostitution of a minor,” and served thirteen months of an eighteen-month sentence. (Second Seidel Decl. (Dkt. No. 58) ¶ 6) On April 20, 2017, Plaintiff Robertson submitted a FOIA request to the FBI seeking “all documents relating to the FBI's investigation and prosecution” of Epstein. (First Seidel Decl., Ex. A. (FOIA Request) (Dkt. No. 50-1) at 4)

On July 2, 2019, Epstein was indicted by a federal grand jury in this District on “one count of conspiracy to commit sex trafficking .. . [and] one count of sex trafficking.” (Second Seidel Decl. (Dkt. No. 58) ¶ 6 (citing United States v. Epstein, 19 Cr. 490 (RMB) (S.D.N.Y.), Indictment (Dkt. No. 2))) After the July 2, 2019 indictment, the FBI “began to categorically assert Exemption 7(A) with respect to information in the remaining documents it was processing ... on the basis that release could negatively impact the then-pending prosecution of Jeffrey Epstein and any related investigations.” (Id. ¶ 7) The FBI further “asserted Exemption 7(A) over all information that had been withheld under other exemptions prior to that date.” (Id.)

Epstein committed suicide at the Metropolitan Correction Center in Manhattan on August 10, 2019, while the charges against him were pending. (Id. (citing United States v. Epstein, 19 Cr. 490 (RMB), Nolle Prosequi (Dkt. No. 52)))

B. The Prosecution of Ghislaine Maxwell

On June 29, 2020, Ghislaine Maxwell was indicted by a grand jury in this District on “one count of conspiracy to entice minors to travel to engage in illegal sex acts”; “one count of enticement of a minor to travel to engage in illegal sex acts”; “one count of conspiracy to transport minors with intent to engage in criminal sexual activity”; “one count of transportation of a minor with intent to engage in criminal sexual activity”; “and two counts of perjury.” (Third Comey Decl. (Dkt. No. 59) ¶ 6)

On December 29, 2021, a jury found Maxwell guilty of enticing a minor to travel to engage in illegal sex acts, transporting minors with the intent to engage in criminal sexual activity, and three related conspiracy counts. (Third Comey Decl. (Dkt. No. 59) ¶ 8; 20 Cr. 330, Dkt. Sheet at Dec. 29, 2021) On June 28, 2022, Maxwell was sentenced to 20 years' imprisonment. (Third Comey Decl. (Dkt. No. 59) ¶ 8; 20 Cr. 330, Judgment (Dkt. No. 696))

On July 7, 2022, Maxwell appealed her conviction to the Second Circuit. (Third Comey Decl. (Dkt. No. 59) ¶ 9) Maxwell seeks, inter alia, “a new trial based on alleged juror misconduct and alleged evidentiary issues.” (Id.) Her appeal remains pending. (Id. ¶ 8)

II. THE SEPTEMBER 19,2023 SUMMARY JUDGMENT ORDER

In its September 19, 2023 Order, this Court granted the FBI summary judgment as to records withheld under Exemption 3 pursuant to the Child Victims' Act (Summary Judgment Order (Dkt. No. 51) at 26); Exemption 5 for attorney work-product privilege (id. at 31-33); Exemptions 6 and 7(C) to protect persons from an unwarranted invasion of personal privacy (id. at 33-42); Exemption 7(D) to protect confidential information provided by local law enforcement agencies (id. at 47-48); and Exemption 7(E) to protect against disclosure of law enforcement techniques, procedures, and guidelines. (Id. at 48-51)

As to Exemption 7(A), this Court found that the FBI's invocation of this Exemption was timely and that the requested records were compiled for law enforcement purposes and related to a pending or prospective law enforcement proceeding. (Id. at 11-18) The FBI, however, “ha[d] not explicitly linked any of the document categories - whether Seidel's or Comey's - to the four types of potential harm cited in the 2021 Comey declaration.” (Id. at 21) As a result, this Court denied the FBI's motion for summary judgment without prejudice as to Exemption 7(A) because the FBI had not demonstrated that the disclosure of the requested records would interfere with pending or prospective law enforcement proceedings. (Mat 18-25)

This Court also denied without prejudice the FBI's motion for summary judgment as to records withheld under Exemption 3 pursuant to the Juvenile Justice and Delinquency Act, 18 U.S.C. § 5038, which shields the arrest information and criminal history of third-party juveniles, and Fed. R. Crim. P. 6(e), which shields matters occurring before the grand jury. (M at 26-31)

Finally, this Court denied without prejudice the FBI's motion for summary judgment as to records withheld under Exemption 7(D) for the protection of information provided under an explicit or implicit assurance of confidentiality, and for information provided by foreign agencies. (Id. at 42-47)

As noted above, in the Summary Judgment Order, this Court directed the parties to submit a joint letter as to next steps, and to propose a “schedule for the FBI's submission of revised declarations, as well as any renewed motions for summary judgment.” (Id. at 54) After the parties submitted a joint letter (Dkt. No. 52), this Court issued an October 3, 2023 order setting a briefing schedule for the parties' renewed cross-motions for summary judgment. (Dkt. No. 53)

On January 30, 2024, the parties filed their renewed cross-motions for summary judgment. (Dkt. Nos. 56, 61)

DISCUSSION

I. LEGAL STANDARDS

A. Rule 56 Standard

Summary judgment is warranted where the moving party shows that “there is no genuine dispute as to any material fact” and that it “is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A dispute about a ‘genuine issue' exists for summary judgment purposes where the evidence is such that a reasonable jury could Declde in the non-movanf s favor.” Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir. 2008). “When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper.” Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994) (citing Dister v. Cont'l Grp., Inc., 859 F.2d 1108, 1114 (2d Cir. 1988)).

In Declding a summary judgment motion, the Court ‘“resolve[s] all ambiguities, and credit[s] all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment.'” Spinelli v. City of New York, 579 F.3d 160,166 (2d Cir. 2009) (quoting Brown v. Henderson, 257 F.3d 246, 251 (2d Cir. 2001) (internal quotation marks and citation omitted)). However, a “‘party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment. . .. [M]ere conclusory allegations or denials .. . cannot by themselves...